In Rucho, Roberts paints OPOV as the paradigm of simplicity, stating that it is “relatively easy to administer as a matter of math.” Rucho Slip Op. 20. Yet nothing could be further from the truth. Under the Equal Protection Clause, legislative districts must provide “substantial equality,” not strict population equality. As the Court stated in Mahan v. Howell, “so long as the divergences . . . are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible . . . .” 410 U.S. 315, 325 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 579 (1964)). In other words, it is not at all true that OPOV claims and partisan-gerrymandering claims are distinguishable on the basis that “it is illegal for a jurisdiction to depart from the one-person, one-vote rule,” as Roberts states in Rucho. Rucho Slip Op. 12.

Under the OPOV doctrine, legislatures can deviate from strict population equality in order to advance any number of legitimate state policies. The choice among (and balance between) these policies is left to the states themselves. Federal courts reviewing these decisions proceed in two steps.

First, they examine “whether it can be reasonably said that the state policy urged . . . to justify divergences . . . is, indeed, furthered by the plan adopted.” Mahan, 410 U.S. at 326. As part of this inquiry, courts have traditionally examined whether the policy urged has been applied inconsistently or in a discriminatory fashion. SeeBrown v. Thompson, 462 U.S. 835, 844 (1983) (accepting deviations from population equality that were “entirely the result of the consistent and non discriminatory application of a legitimate state policy”); Roman v. Sincock, 377 U.S. 695, 710 (1964) (permitting population deviations “only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination”). In other words, federal courts defer to the redistricting criteria and state policies advanced and adopted by the legislature, but check to make sure the population deviations actually advance those policies and that those policies are not being applied in an inconsistent, non-neutral manner. In Mahan, for example, Virginia wanted to maintain city- and county-boundaries, and the Court found that the deviations from population equality did, in fact, “advance the rational state policy of respecting political subdivisions.” 410 U.S. at 328.

Second, courts also examine “whether the population disparities among the districts that have resulted from the pursuit of th[e] plan exceed constitutional limits;” for a state policy, “however rational, cannot constitutionally be permitted to emasculate the goal of substantial equality.” Id. at 328, 326. This is by no means a clear-cut constitutional standard and evokes the same kind of “how far is too far” questions that supposedly make partisan-gerrymandering claims intractable. In Mahan, the Court upheld a 16.4% population deviation, noting that “[w]hile this percentage may well approach tolerable limits, we do not believe . . . Virginia has . . . sacrificed substantial equality to justifiable deviations.” Id. at 329. Indeed, the Court openly acknowledged in Mahan that “[n]either courts nor legislatures are furnished any specialized calipers that . . . establish[] what range of . . . deviations [from constitutional requirements] is permissible.” Id. The Court has never set out a clear percentage threshold for constitutional liability under the OPOV doctrine because that determination—whether a state has subordinated “substantial equality”—requires a delicate, case-specific judgment that turns on the facts on the ground and the specific policies advanced by the state.

This more honest and complex account of the OPOV doctrine demonstrates the ways in which Roberts’ superficial objections to the outlier method ring hollow. In Rucho, Roberts claims that the outlier method is “indeterminate and arbitrary” because “it does not make sense to use criteria that will vary from State to State and year to year as the baseline for determining whether a gerrymander violates the Federal Constitution.” Rucho Slip Op. 27-28. Roberts objects that “it is easy to imagine how different criteria could move the median map toward different partisan distributions” and that “the same map would be constitutional or not depending solely on what the map makers said they set out to do.” Id. But this is the same kind of fact-specific and deferential analysis that federal courts undertake in OPOV claims—allowing legislatures to articulate their own theory of representation and their own preferred criteria, but then calling legislators to account if they apply those criteria in a discriminatory fashion or if they go “too far” and subordinate “substantial equality.”

How has the Supreme Court avoided getting caught in constant political crossfire with such an amorphous and fact-intensive constitutional standard for OPOV liability? The Court also adopted an easily administrable burden-shifting standard: maps with population deviations above 10% are presumptively unconstitutional; maps with population deviations below 10% are presumptively constitutional. See Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1307, 1310 (2016). Legislatures responded to this rule by steering well clear of the 10% threshold to avoid lawsuits even though the standard for constitutional liability remained as fuzzy and case-specific as ever. Maps could still be found unconstitutional below 10% or be found constitutional above 10%, but the burden-shifting threshold helped avoid constant litigation over the application of the constitutional standard itself.

This, too, shows Rucho’s supposedly “unanswerable question” (“how much is too much”) to be less daunting than portrayed. In rejecting the outlier method, Roberts asks “Would twenty percent away from the median map be okay? Forty percent? Sixty percent? Why or why not? . . . The Constitution provides no basis whatsoever to guide the exercise of judicial discretion. Common experience gives content to terms such as ‘substantial risk’ or ‘substantial harm,’ but the same cannot be said of substantial deviation from a median map. There is no way to tell whether the prohibited deviation from that map should kick in at 25 percent or 75 percent or some other point.” Rucho Slip Op. 28. Here, Roberts assumes that 20, 40, or 60 percent must be a constitutional standard of liability and finds no basis for drawing the line at any particular quantum.

But the OPOV doctrine demonstrates that there is no need for the presumptive line to be the same as the constitutional standard. The Supreme Court could have easily paired a clean and administrable burden-shifting rule with a more flexible but principled constitutional standard. For example, if a challenged district and challenged map fall within the majority of expected nonpartisan outcomes based on an outlier analysis, then the plaintiff could be required to show that it is more probable than not that illegitimate considerations predominated in the creation of the district. If the evolution of the OPOV doctrine is any guide, legislatures would quickly move within the broad universe of maps that comply with the burden-shifting line, avoiding litigation over the more difficult constitutional question altogether and helping courts stay out of the fray and avoid being accused of picking winners and losers.

In fact, the Court’s holding in Rucho may well upset the uneasy truce that has helped the OPOV doctrine develop its reputation as “relatively easy to administer as a matter of math.” Rucho Slip Op. 20. After Rucho, state and federal courts alike might find themselves forced to answer a new question: How much pursuit of partisan advantage is permitted before it subordinates substantial equality? After all, if partisan advantageis now a “legitimate” redistricting policy in its own right (rather than a discriminatory application), then legislators may feel little need to continue operating within the OPOV doctrine’s clear 10% presumptive threshold and may begin re-exploring the limits of the more case-specific constitutional OPOV standard. Roberts’ attempt to extricate courts from the political fray in one area may have just made matters worse in another: federal courts might now be forced to answer, on a case-by-case basis, “how much” partisan advantage is allowed before the OPOV doctrine’s underlying standard is triggered. Will it be 17%? 20%? 25%? The Court may soon find itself forced to answer the very same “unanswerable questions” it was trying to avoid, just in a new context. The Court could have — and someday should — avoid all of this by (1) recognizing that partisan advantage cannot be considered a “legitimate state policy” under OPOV, and (2) implementing a burden-shifting standard for partisan outliers.

In the meantime, state supreme courts have the opportunity to learn from the U.S. Supreme Court’s oversight and incorporate the forgotten, nuanced nature of the OPOV doctrine into their decision-making calculus. If plaintiffs bring partisan-gerrymandering claims under state constitutional law and rely upon outlier methods, state courts should keep these doctrinal parallels, distinctions, and consequences in mind and should consider pairing a clear burden-shifting rule with a more case-specific constitutional standard. By doing so, courts might actually extricate themselves from the delicate business of regularly declaring “how much is too much.”

In holding that partisan gerrymandering claims are not “resolvable according tolegalprinciples” and are “therefore beyond [federal] courts’ jurisdiction,” Chief Justice Roberts casts aspersions on the democratic “instinct” that greater political support should result in greater political power, closing with a quip: “[T]his is not law.”[1] That barb is ironic. ForRuchoseems more animated by instinct than law. As in other areas of federal election law, the Court’s purported eschewal of democratic theory inRuchoreflects its own theory of democracy—and a damaging one at that.

First the good news: Voters can still bring partisan gerrymandering claims in state courts. Not only do state constitutions contain unique protections for voting beyond those relied upon under federal law,[2]litigants could use the evidentiary tools and standards developed by federal district courts to date to bring state equal-protection and/or free expression/association claims.[3] While state courts often instinctively adopt federal precedent,[4]there are good reasons not to foreclose such claims here: (1)Ruchodid not dismiss the Equal Protection or First Amendment claims on the merits;[5](2)Ruchoinvokes the history of the Elections Clause—a provision unique to the federal constitution—in support of its justiciability ruling; and (3) the justifications for lockstepping federalrightsdoctrines do not strongly support lockstepping federalstructuraldoctrines.[6] All of these provide off-ramps for state court justices unwilling to close the courthouse doors on gerrymandering claims.

Now the bad news:Rucho’s core holding appears to rest on a far more dangerous idea—that governments can claim a legitimate interest in designing electoral rules to benefit a state-favored candidate or party.

To avoid this, one could attempt to readRuchoagainst the grain as a prudential decision. WhileRucho(likeVieth) invokes the history of the Elections Clause to inform its analysis, the holding is principally based on the supposed inherent unmanageability of the claim. No majority has ever held a whole category of constitutional claims nonjusticiable on this basis alone,[7]and for good reason: doing so sets the political question doctrine in conflict with standing doctrine.[8]Ruchospeculates about facts and arguments not before the Court in a discrete case or controversy, and it makes judgments about what is or is not conceptually possible as an abstract, extra-constitutional matter. More to the point: it is disingenuous to claim that the Court is trulyincapableof adopting a standard.[9] Perhaps, then, one might try to chalkRuchoup to a resurging prudential political-question doctrine: the Chief thought gerrymandering cases threatened the Court’s reputation, so he dressed up a practical decision in constitutional terms. Whether that is a short-sighted or long-sighted decision, however, it wouldnotbe a decision “resolved according tolegalprinciples.”

But what if we take the Chief at his word?The Court has been jettisoning prudential justiciability rules in recent decades, andRuchocertainly purports to be constitutionally required. What reading of which clause gives the decisionlegalforce? IfRuchodid not interpret the First Amendment or Equal Protection Clause on the merits, then the opinion’s (incorrect) objection that partisan gerrymandering claims “invariably sound in a desire for proportional representation” is beside the point. The more fundamental objection is that “deciding among . . . different versions of fairness . . . poses basic questions that are political, not legal,”[10]and that the Elections Clause entrusts those decisions to the discretion of the legislature. As Roberts notes, “fairness” could mean competitiveness, or proportionality, or keeping communities of interest together.[11] So far, so good: all of these are facially-neutral, legitimate theories of democratic governance that are contestable, and Roberts is right to leave legislators free to choose among them.[12]

To render gerrymandering claims nonjusticiable as a constitutional matter, however, Roberts goes a step further—throwing neutrality overboard and holding that a government preference for a specific party/candidate isjust another legitimate theory of representationthat legislatures may pursue under the Elections Clause.[13] This is a dramatic and dangerous development[14]that elides the difference between courts illegitimately displacing legislative discretion and courts legitimately applying judicial standards to legislative decisions.[15]

The consequences are likely to be severe. After the 2020 Census, gerrymanders won’t just pinpoint partisans more precisely—they might combine qualitative dilution with quantitative dilution, doubly suppressing the influence of disfavored voters. If “securing partisan advantage” is a permissible state interest, then we might even see legislators exploring beyond the one-person one-vote doctrine’s 10% threshold of presumptive unconstitutionality.[16] Such aggressive compound-gerrymanders would make “state-favored candidates” virtually undefeatable.

Moreover, if “securing partisan advantage” is a legitimate state interest, legislators may feel compelled to test whetherRucho’s implicit interpretation of the Elections Clause can be smuggled outside the redistricting context. Unlike a decision holding partisan-gerrymanders unlawful (which disarms both parties),Ruchocreates a perverse incentive for legislators to reap the “first-mover” advantage that might come from applying the decision’s logic in new contexts. After 2010, Republicans bet big that ambiguities in redistricting law would be resolved in their favor and they were rewarded. Whether 2020 rewards the same behavior—or whetherAnderson-Burdickcan provide a meaningful backstop—remains to be seen. Either way, a wave of new laws aimed at rigging democratic institutions would seem to be on the horizon.

In short,Ruchois built on a cynical theory of constitutional democracy, where the sovereignty of “the people” increasingly slips behind the power of the state. Perhaps the Chief Justice is hoping that voters’ partisan rancor and ever-growing disillusionment will be aimed at Congress or state legislatures instead of the Court. But it’s a sorry kind of institutionalism that aims only to be the last branch of government to burn—especially if that requires laying the kindling.

In the one-person one-vote context, the Supreme Court once recognized that legislatures can advance any number of legitimate state redistricting policies so long as those policies “are free from any taint of arbitrariness or discrimination.”[17] UnderRucho, discriminationisa legitimate policy—and the state’s avowed goal of picking winners is granted the same deference as a choice between competitiveness, proportionality, symmetry, or keeping communities intact. State supreme courts should reject the invitation to incorporate this antidemocratic instinct into their own charters. And hopefully, in time, the Supreme Court will look back uponRuchoand say, “This is not law.”

[3]SeeG. Michael Parsons,Partisan Gerrymandering Under Federal and State Law, in America Votes! Challenges to Modern Election Law & Voting Rights (Jack Young & Ben Griffith eds., ABA, 4th ed.) (forthcoming 2019). At the very least, including these claims alongside state-specific claims could provide a useful contrast to favor a more robust interpretation of the latter.

As election returns rolled in last week, citizens in Democratic and Republican strongholds alike voted overwhelmingly to take power back into their own hands. From voting-rights restoration for 1.4 million returning citizens in Florida and Automatic Voter Registration (AVR) in Nevada to redistricting reform in Michigan, Missouri, Colorado, and Utah, the night was full of impressive democracy-enhancing victories.

These gains were only possible thanks to incredible dedication and activism between the 2016 and 2018 elections. And, as the dust settles on 2018, it’s time to turn to 2020. For states with popular initiatives, that means expanding AVR, implementing early voting and no-excuse absentee voting, or following Maine’s lead and adopting ranked-choice voting.

Yet, improving our elections should not be the work of the voters alone. As more and more elected officials owe their office to such reforms, they too can help unrig the systems that keep our politics unaccountable. And, for candidates who can only win in wave years, the first order of business must be tearing down the barriers that make our elections unresponsive in all other years. Newly elected leaders have an opportunity to make voting more accessible and representative before 2020 arrives—they must not pass it up.

These kinds of structural changes are less likely to roll back after the next election because they alter the power (and the pool) of the voters making the decisions, thereby changing the incentives of those running and those elected. Putting these reforms at the top of the agenda—and insisting on them before moving forward—can also impact how newly elected officials of all stripes approach the rest of their legislative term. If state officials know that their work will be judged by a broader and more representative electorate in two years’ time, they might be more responsive in the interim.

In states where these reforms are already in place due to citizen initiative, legislators should take steps to enhance and protect those reforms by reenactment and expansion. This explicit legislative action may help defend them against challenge if the Supreme Court decides to revisit its 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission. As Rick Hasen points out in a recent Harvard Law Review Blog post, Chief Justice Roberts “wrote a blistering dissent for the four conservative Justices arguing that only state legislatures can set the rules” for congressional elections under Article I of the U.S. Constitution. With Kennedy replaced by Kavanaugh, it may be that the Court’s fickle feelings about stare decisis are now all that stand in the way of a massive rollback in recent initiative-driven gains. By shoring up these reforms through legislative action, state representatives can help lock in these democratic advances, protect them against judicial challenge, and position themselves as defenders of the popular will ahead of their next election.

There may also be room for compromise on redistricting reform in a number of states with split governments. Maryland and Massachusetts, for example, continue to have Democratic legislatures and Republican governors, whereas Virginia and Wisconsin have Republican legislatures and Democratic governors.[1] With a new round of redistricting approaching (and roughly equal numbers of congressional representatives in each state), perhaps there’s more of an incentive now to “make a disarmament deal” than in prior years, with each state conditioning redistricting reform on a sister state enacting the same.

Each of these steps would improve the state of our democracy significantly and set the stage for elections in 2020 based on a much more representative electorate.

Federal Action

With a Democratic House and a Republican Senate, the odds of federal action may seem slim. Nonetheless, Election Night revealed that democratic reforms remain popular across party lines. Proposals for improving our elections should be at the front of the legislative calendar and should remain a top priority throughout the coming legislative session. These include:

Automatic National Voter Registration: Those who are eligible to vote should be able to vote, and those who are ineligible to vote should be kept off the registration rolls—these basic principles have widespread public support. A national system that automatically registers voters for federal elections as soon as they become eligible and that assigns a national identification number to each voter would address both of these concerns. The United States has terrible turnout numbers, but much of this may be attributable to the registration barrier: our turnout of registered voters appears to be among the best in the world.

Voting Rights Act Restoration: If it feels like voting has become far more difficult over the past few years, you’re not wrong. Before 2013, states and localities with a history of discriminatory voting practices could not alter their voting rules without getting prior permission (or “preclearance”) from a federal court or from the Department of Justice. In 2013, the Supreme Court held that the list of jurisdictions subject to preclearance was outdated and struck this part of the Voting Rights Act (VRA) down. Numerous new voting restrictions soon followed. Congress used to reauthorize the VRA with broad bipartisan support, and it should do so again this session by enacting the Voting Rights Advancement Act (legislation that requires preclearance for any state with a record of voting-rights violations in the last 25 years).

End Gerrymandering with the Fair Representation Act: Independent redistricting commissions enjoy widespread support across the partisan divide and should be required for the creation of all congressional districts. But Congress should not stop there—it should pass the Fair Representation Act (FRA). The FRA uses ranked-choice voting and multi-member districts to ensure that every vote matters. Independent commissions can help make lines fairer, but single-member districts mean even the “fairest” lines will still write off those voters in the minority of each district. In our increasingly polarized politics, we could stand to have a House of Representatives with Massachusetts Republicans, Arkansas Democrats, and perhaps even some third-party Members of Congress—voices that our current system shuts out.

Election Administration: No one should have to wait hours to vote, face malfunctioning equipment, or fear that vote tallies have been manipulated. Back in 2014, a bipartisan commission proposed a number of reforms to improve polling place resource allocation, expand opportunities to vote before election day, and provide regular audits of voting equipment. These suggestions are still relevant today. Congress should provide funding to update and improve our electoral machinery and processes.

With forceful action at the start of the next session, Congress could put our democracy on a safer and more sustainable path, leveraging the progress of the last step forward in order to make the next step possible. But these reforms must be first on the legislative agenda if they’re to make any difference in time for the 2020 elections. Democrats and Republicans alike should take a lesson from the voters: some things are beyond the partisan divide. Free and fair elections ought to be one of them.

—

[1] Maryland and Massachusetts may be less inclined to engage in this exchange given their Democratic supermajorities, but given the slightly higher number of Republican representatives at stake (and the recent federal court ruling against Maryland’s gerrymander) perhaps there is still incentive to make a trade.

Now that Justice Kennedy has announced his retirement, everyone’s attention has turned to the question of who will fill his seat. Given Kennedy’s status as the swing vote (despite being quite “un-swingy” as of late), Democrats are rightly concerned that a replacement in the mold of Justice Gorsuch could shift the ideological balance of the Court for a generation. Democratic senators are already rallying to make the upcoming midterm elections about Kennedy’s replacement. There’s just one problem: they don’t have the votes.

Democrats are in the minority and it’s sheer fantasy to think that even the most “persuadable” Republican senator would be willing to hold a seat open until after the midterm elections. The best short-term hand Democrats can play is to pressure more moderate Republican senators into supporting the least-extreme potential nominees on Trump’s list.

The long-term makeup of the Court, however, still hangs in the balance this November.

That’s because whoever controls the Senate in the next two years may well determine who fills Justice Thomas’s seat. Until today, some speculated that Thomas—not Kennedy—might be next to retire. Most of the reasons for that speculation—especially the ability to step down during a Republican presidency—still hold. And while a “blue wave” would come too late in the day to prevent moderate Kennedy from being replaced with a hardline conservative, it would not come too late to prevent hardline-conservative Thomas from being replaced with a moderate. The Democrats face an uphill battle to retake the Senate, but if they succeed they could insist on amends (Merrick Garland, anyone?) or even hold the seat open in the hopes of a Democratic presidency in 2020.

The Supreme Court is in for a markedly conservative turn in the near future no matter what happens. Whether that rightward swing holds for a generation, however, rests with the voters this November.

Excited to have a post up today on Take Care Blog discussing Raines v. Byrd and the impact of separation-of-powers principles on legislator standing in the congressional emoluments lawsuit:

In Raines, a group of Senators and Representatives brought a lawsuit claiming that the Line Item Veto Act—which Congress had passed over their nay votes—was unconstitutional because it diluted their legislative power. . . . As the Raines Court observed, “the law of Art. III standing is built on a single basic idea—the idea of separation of powers.” The decision revolved around this structural principle and was animated by a respect for judicial boundaries and the need to let the political process play out with each branch fulfilling its constitutionally assigned role.

In the congressional emoluments case, respect for structural concerns leads to the opposite result. Failing to accord standing would undermine separation-of-powers principles; draw each branch beyond its proper constitutional sphere; and allow the Executive, the Legislative, and the Judicial branch to shirk their constitutionally assigned duties.

Yet, in the background of almost every major debate lingers a conceptual distinction that could help strike consensus across a range of issues: the distinction between “intent” and “basis.” Intent asks: “Why this district?” Basis asks: “Why this person?”

The concepts intersect on the margins, but each plays a unique and distinct role in the “dilution v. sorting” question, the “race v. party” question, and the balance of powers question, among others. Moreover, the importance of this distinction goes beyond redistricting law—it could play a key role in forming a more coherent, simple, and rigorous voting rights framework at a time when it could not be more critical.

In the field of redistricting law, this distinction makes it possible to reduce a complex body of law into a relatively simple table (assuming the Court is willing to adopt both a political dilution claim and a political sorting claim, as I have advocated and as would address the concerns of the Whitford dissent).[3] [UPDATE: Aspects of this table have been eclipsed by more recent developments in the law.]

Below, I explain the basis/intent distinction further, how it resolves a number of redistricting law issues, and how it plays a critical role in preserving foundational principles of constitutional law in our democracy.

On the eve of the 115th Congress, House Republicans have voted to gut the Office of Congressional Ethics – an independent ethics watchdog created in the wake of the Jack Abramoff scandal. The proposal creates, instead, a new “Office of Congressional Complaint Review” within the House Ethics Committee, giving lawmakers themselves more control over internal ethics inquiries. Early reports suggest the new office won’t be able to release information to the public, have a communications spokesperson, consider anonymous tips against lawmakers, or even communicate with law enforcement unless the House Ethics Committee approves.

The proposed change will be included in a package of new House Rules governing the incoming Congress, which is scheduled for a vote by the full House tomorrow afternoon.

UPDATE: After a swift and overwhelming blowback from the public, the plan was scuttled. Issue One’s press release provides the reformers’ mantra for all of the challenges on the horizon: Victory, then Vigilance.